The Senate's 'return to regular(ish) order': positive but fragile

For the past week, majority leader Mitch McConnell (R) of Kentucky experimented with an open amendment process in the Senate. Members offered amendments on everything from climate change, to federally protected land, to limiting the president’s ability to initiate and sign bilateral agreements with foreign countries.

The broader question is: Can McConnell take a positive step toward a functioning Senate?

There are some positives to take away from the past week. Debate has gone smoothly, for the most part. Senators have worked together on several fronts. Sen. Lisa Murkowski (R) of Alaska and Sen. Maria Cantwell (D) of Washington, the chair and ranking member on Energy and Natural Resources Committee, have worked behind the scenes to find amendments both sides are willing to tackle. As a result, the Senate has debated subjects such as climate change, potential limitations on informal and formal executive treaties, taxation of tar-sands oil, and topics such as private property vs. eminent domain. Willingness to work through regular(ish) order has reinvigorated debate and deliberation over the last week. As a result the Senate has voted on more amendments in the last week than all of 2014.

However, it is not all good news. Yesterday some filibusters began to emerge. Several amendments were held to a 60-vote threshold, meaning that not all senators would allow those votes unless there was an implicit understanding that they wouldn’t pass. As the afternoon turned into the evening, those seemingly sparse filibusters turned into outright stalemate. The process came to a halt. In what appeared to be frustration or impatience, McConnell killed the pending amendments and filed cloture. This essentially guarantees the bill will move toward passage next week with few if any additional amendment votes. To an extent, the Senate we’ve come to know over the past few years reemerged.

Obviously the Keystone debate has been a more robust one than those in the 113th Congress. But last night highlights just how fragile the process really is. The majority opened up the process to allow the minority to participate. And as has been common among recent congressional minorities, they have wanted more time, more debate, and more amendments. In the eyes of the majority, they want to abuse their privileges. As a result the majority shuts down the process. Steven Smith, the Kate A. Gregg Distinguished Professor of Social Science at Washington University in St. Louis, refers to this erosion of cooperation as the "Senate syndrome," and it appears to have struck again in the third week of session. A week-long debate over amendments to an important bill is a positive step. But it is clear the process is fragile and trust between the parties is not high.

Lastly, Keystone is a unique case. High public visibility and bipartisan support grease the wheels of cooperation. In other words, it’s the type of bill where this kind of bipartisan process can flourish. However, not all issues enjoy broad support. And at some point, likely soon, stronger opposition will reemerge. At that point, we’ll see if McConnell’s experiment with regular order is sustainable or if the "Senate syndrome" will erode the good will that was built this past week.

Joshua Huder publishes his Rule 22 blog at http://rule22.wordpress.com.